Constitutional Law
Oct. 18, 2000
Searchlight
The U.S. Supreme Court has five new Fourth Amendment cases on its docket.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
The U.S. Supreme Court already has five cases on its docket for the new term concerning the Fourth Amendment. Three Fourth Amendment cases were decided last term, and four the year before that. In an era in which the Supreme Court's docket is dramatically shrinking, the number of Fourth Amendment cases is, if anything, increasing.
Moreover, it is not simply a matter of quantity; qualitatively, these cases pose issues that affect large numbers of people: Can the government set up roadblocks to check for drugs? Can a public hospital subject pregnant women suspected of cocaine use to drug tests? Can the police arrest a person for not wearing a seat belt? Can the police exclude a person from his or her home while obtaining a search warrant? Is it a search for the police to use a thermal imaging device to detect a concentration of heat consistent with the use of an indoor marijuana-growing operation?
Why so many significant Fourth Amendment cases? Over the past two decades, the Supreme Court has emphasized that "reasonableness" is the central inquiry in Fourth Amendment analysis. See, e.g., Florida v. White, 526 U.S. 559 (1999); Wyoming v. Houghton, 526 U.S. 295 (1999). The court stresses that "reasonableness" is determined based on "the totality of the circumstances." This inquiry is inherently fact-based and, therefore, invites Supreme Court review of a large number of rulings.
Also, the court has fashioned over a half dozen exceptions to the warrant requirement for searches and seizures. Some of these, such as "exigent circumstances" and "special needs," are quite vague. See, e.g., Minnesota v. Carter, 525 U.S. 583 (1999); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995). This inevitably requires Supreme Court interpretation and clarification.
All three Fourth Amendment cases decided last term were significant. In Illinois v. Wardlow, 120 S.Ct. 673 (2000), the court held that unprovoked flight from a police officer is a relevant factor in determining if there is reasonable suspicion to justify a police stop. In Wardlow, the court ruled that reasonableness is to be determined from the totality of the circumstances and that flight from a police officer in a high-crime area is sufficient to create reasonable suspicion.
In Florida v. J.L., 120 S.Ct. 1375 (2000), the court held that an anonymous tip that a person is carrying a firearm is not sufficient to create reasonable suspicion to justify a stop-and-frisk when the tip provides no more than a physical description of the person. The court stressed that there must be some corroboration to justify the police relying on such a tip.
Finally, last term, in Bond v. United States, 120 S.Ct. 1462 (2000), the court held that the manipulation of luggage by law-enforcement personnel, during a routine immigration check on a bus, is an illegal search under the Fourth Amendment.
The five Fourth Amendment cases on the docket for this term promise to be even more important. In Indianapolis v. Edmund, 183 F.3d 659 (7th Cir. 1999), cert. granted, 120 S.Ct. 1156 (2000), the court will consider the constitutionality of police roadblocks that seek to catch drug offenders by having the police look for indications of drug use or possession. Police in Indianapolis created checkpoints where cars were stopped and police inspected the autos, with the use of drug-sniffing dogs, for any evidence of drug violations.
Previously, in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the court upheld sobriety checkpoints to identify those driving under the influence of alcohol. In Edmund, the 7th U.S. Circuit Court of Appeals, in an opinion by Judge Richard Posner, distinguished sobriety checkpoints as serving an important safety need not present with the drug roadblocks. Judge Posner found that the drug checkpoints constituted an impermissible search without probable cause. But Judge Frank Easterbrook dissented, arguing that the intrusion on privacy was minimal while the benefits to law enforcement were great.
The Supreme Court must choose between these conceptions and decide the circumstances under which police roadblocks for law enforcement purposes are permissible.
In Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir. 1999), cert. granted, 120 S.Ct. 1239 (2000), the court will consider the constitutionality of a state hospital's policy of testing pregnant women who show signs of drug addiction for cocaine use and turning positive results over to law enforcement for prosecution. The 4th Circuit rejected a Fourth Amendment challenge, concluding that the government had a substantial interest in reducing the use of cocaine by pregnant women and that drug testing was the only effective means of accomplishing this. The Court of Appeals found that the drug testing was a permissible search within the "special needs" exception of the Fourth Amendment.
Previously, the Supreme Court has upheld random drug testing for student athletes and customs workers and has invalidated a law requiring drug testing for political candidates in Georgia. See Chandler v. Miller, 520 U.S. 305 (1997) (political candidates); Vernonia School Dist. 471 v. Acton, 515 U.S. 646 (1995) (high-school athletes); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (customs workers).
Ferguson will require the court to consider drug testing in a very different context. Underlying this case is the obviously difficult issue of how the law should regard a fetus and the extent to which the state has an interest in protecting a fetus from its mother's actions.
In Illinois v. McArthur, 304 Ill.App.3d 395 (1999), cert. granted, 120 S.Ct. 1830 (2000), the court will consider whether probable cause to search a residence justifies removing a person from the home and preventing reentry until a search warrant is obtained. The defendant had been in his house and then came outside to the front porch; the police told him that he could not reenter unless accompanied by an officer until the warrant was approved.
The Illinois Court of Appeals affirmed the trial court's exclusion of the evidence based on a Fourth Amendment violation. The Supreme Court must decide whether the police committed an impermissible seizure by keeping the person from his home during the time before the warrant was obtained.
In Atwater v. Lago Vista, 195 F.3d 242 (5th Cir. 1999) (en banc), cert. granted, 120 S.Ct. 2715 (2000), the issue is whether a custodial arrest for a misdemeanor violates the Fourth Amendment. A woman in Texas was arrested for driving without a seat belt and failing to have her child in a seat belt. The police officer arrested her and took her in custody.
The 5th Circuit, in an en banc decision, found no violation of the Constitution. The 5th Circuit emphasized that the Fourth Amendment requires only probable cause for an arrest and that was present here. The Supreme Court, for the first time, must decide whether a custodial arrest for misdemeanor conduct violates the Fourth Amendment.
Finally, thus far, the court on Sept. 26, granted review in Kyllo v. United States, 190 F.3d 1041 (9th Cir. 1999), cert. granted, 2000 WL 267066 (Sept. 26, 2000). The issue in Kyllo is whether the use of a thermal imaging device to detect heat in a residence is a search within the meaning of the Fourth Amendment. Based on a tip from a police informant and Danny Lee Kyllo's utility records, police suspected Kyllo of operating an indoor marijuana-growing operation. The police used a thermal-imaging device that showed a substantial concentration of heat, which is consistent with growing marijuana indoors.
The 9th Circuit rejected Kyllo's claim that this was an impermissible search within the meaning of the Fourth Amendment. The Supreme Court will once more have to decide how an amendment adopted 209 years ago should be applied to the technology of the 21st century.
Individually and collectively, these five Fourth Amendment cases promise to be some of the most interesting and important of the term. Ultimately, the Fourth Amendment is about the proper balance between government power and individual privacy and freedom. Each of these cases, in quite different contexts, poses exactly this issue.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
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